Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Boyd v Wild Hibiscus Flower Company Pty Ltd (No 2) [2012] FCA 74 Citation: Boyd v Wild Hibiscus Flower Company Pty Ltd (No 2) [2012] FCA 74
Parties: JAMES BOYD and LIMEBURST PTY LTD (ACN 115 684 243) v WILD HIBISCUS FLOWER COMPANY PTY LTD (ACN 115 057 497), LEE DANIEL ETHERINGTON and JOCELYN LILY GALE ETHERINGTON
File number: NSD 8 of 2012
Judge: FOSTER J
Date of judgment: 10 January 2012
Catchwords: TRADE MARKS – applicants alleged infringement of registered trade marks used in the sale of finger limes – whether the respondents' use of the words "Freshburst" and "FreshBurst" is substantially identical to or deceptively similar to the first applicant's trade mark "limeburst" – whether the respondents' use of the words "Freshburst" and "FreshBurst" in combination with the words "Citrus Caviar" and the image of a finger lime constitutes an infringement of the first applicant's trade marks – whether the words "citrus caviar" are used descriptively in the relevant markets. PRACTICE AND PROCEDURE – interlocutory injunction – whether prima facie case of infringement of registered trade marks and other contraventions established – no serious question to be tried – consideration of the balance of convenience and justice – applicants' unexplained delay in initiating proceedings sufficient ground for refusing interlocutory relief – no evidence of irreparable harm to applicant if interlocutory relief not granted – respondents demonstrated that they would suffer serious prejudice if injunction granted – interlocutory injunction refused
Legislation: Australian Consumer Law, s 18 Federal Court of Australia Act 1976 (Cth), s 43 Trade Marks Act 1995 (Cth), s 120
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